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On Thursday, a federal judge overseeing a lawsuit by three women against Bill Cosby issued his first decision in the case.
Tamara Green, Therese Serignese and Linda Traitz are suing Cosby for defamation on the grounds that the comedian and his reps branded them liars in response to sexual abuse charges. In response, Cosby has asserted rights to make “privileged utterances of self-defense.”
Today’s ruling from U.S. District Judge Mark Mastroianni only addresses whether the three women should be allowed to amend their lawsuit — and his opinion is a careful one that’s not intended to address the merits of the claims. That said, the new language in the amended lawsuit shows just how problematic the statute of limitations has become for the women targeting Cosby.
After all, the statute of limitations is one of the core reasons why the women aren’t going after Cosby for sexual abuse directly. Green, for instance, claims that she was drugged and sexually assaulted by Cosby in the 1970s. That’s too old a charge to survive in court. So she’s targeting statements by Cosby’s reps in reaction to articles about her allegations. In particular, there’s one comment by Cosby lawyer Walter Phillips Jr. to a 2014 story in The Washington Post. He stated, “Mr. Cosby does not know the name Tamara Green or Tamara Lucier [her maiden name], and the incident she describes did not happen.”
But… it turns out that Phillips didn’t make that statement in 2014. The newspaper later published a correction indicating that the response was made in 2005. And so, even the defamation claim based upon this statement might not survive the statute of limitations.
Joseph Cammarata, attorney for the plaintiffs, appears to have a new theory on why a decade-old statement is still punishable. The amendment to the lawsuit includes language that Cosby, through Phillips, gave the statement in 2005, “with the expectation and intent that the statement would be republished by news outlets in the event that Plaintiff Green should repeat her accusations.”
In response, Cosby’s attorneys demanded the judge stop the lawsuit from being amended because it would be “futile,” that it still wouldn’t beat the statute of limitations.
Holding people liable for comments made long ago for their future expectations on republishing opens a can of worms. However, Mastroianni isn’t going to tackle plaintiff’s theory just yet. In a ruling that should probably only interest hard-core geeks of civil procedure, he notes the plaintiffs aren’t adding new claims, just amending relevant facts and corresponding arguments to existing ones. Thus, he allows the lawsuit to include this new language about a 2005 statement being given with the expectation that it would get re-published a decade later.
Eventually, the judge will address the merits of the defamation claims, and until then, there could be a battle over discovery.
The three accusers are aiming to inspect documents about Cosby’s prior legal battle over sexual misconduct. That case took place in Pennsylvania, was settled in 2006, and many of the documents remain sealed. The plaintiffs in the defamation case are seeking to subpoena third parties, requesting those old documents, and tell the judge, “The documents at issue may include discovery responses and/or deposition testimony by Defendant Cosby admitting to sexual misconduct against one or more of the Plaintiffs, contrary to Defendant’s representation to this Court in his Motion to Dismiss.”
Over in the Pennsylvania case, the judge sent out a notice of the potential unsealing of certain discovery motions, which led one of Cosby’s lawyers to object and request a hearing. Cosby attorney George Gown wrote, “This is a complex matter, involving important and legitimate privacy issues.”
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